Cowan v R [2015] NSWCCA 118

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cowan v R [2015] NSWCCA 118 Hearing dates: 29 April 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Before: Bathurst CJ at [1] Simpson J at [4] Bellew J at [9] Decision: Leave to appeal is granted. The appeal is allowed. The sentence imposed upon the applicant in the District Court is quashed. In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 3 September 2013 and expiring on 2 July 2015 with a balance of term of 1 year and 2 months imprisonment commencing on 3 July 2015 and expiring on 2 September 2016. Catchwords: CRIMINAL LAW – sentence – where applicant pleaded guilty to an offence of aggravated break and enter and commit a serious indictable offence (larceny) – offending in the nature of a "ram raid" – evidence before the sentencing judge that the applicant had a mental disability – no submissions made to the sentencing judge regarding the principles applicable to the sentencing of mentally ill offenders – sentencing judge delivered ex tempore remarks without making reference to such principles – obligation on the part of the sentencing judge to consider that issue notwithstanding the absence of submissions made to him – error established Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Elturk v R [2014] NSWCCA 61 Gommesen v R [2012] NSWCCA 226 Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 McLaren v R [2012] NSWCCA 284 Martin v R [2015] NSWCCA 6 R v Campbell [2014] NSWCCA 102 R v Fernando (1992) 76 A Crim R 58 R v Tuuta [2014] NSWCCA 40 Warner aka Jeremy Pachenko v R [2013] NSWCCA 10 Category: Principal judgment Parties: Glen Eric Cowan - Applicant Crown - Respondent Representation: Counsel: Ms H Cox - Applicant Mr P Ingram SC – Respondent